How Much Is Enough? The Supreme Court Sets The Standard For Making A Claim

by Sheryl L. Axelro

On May 18, 2009, the Supreme Court issued a controversial decision with far-reaching implications for cases filed in federal court.  Ashcroft v. Iqbal is about the amount of detail required in a complaint, a document filed at the beginning of a lawsuit.  A complaint sets out the claims the party bringing the lawsuit, known as the plaintiff, has against the party being sued, known as the defendant. 
In Bell Atlantic Corp. v. Twombly, a case decided not long before Iqbal, the Supreme Court considered the amount of information complaints in antitrust cases must have.  In Iqbal, the Supreme Court, split 5 justices to 4, broadened the scope of Twombly to all complaints filed in federal court.  To survive a motion to dismiss, a plaintiff must now provide enough facts to show that, if he proves his case, it is not just "possible" the defendant acted unlawfully; it is "plausible".
For plaintiffs, Iqbal heightens the amount of information they will need to plead.  Now before ever conducting depositions, asking written questions or seeking documents, a plaintiff in federal court is going to need to know enough about his case to draft a complaint showing it is plausible there in fact is a case. 
The new pleading requirement does not absolve those who bring suit from the honesty and candor requirements inherent in court proceedings.  A plaintiff must verify his complaint under penalty of perjury, and his counsel must have a reasonable basis to assert the allegations contained in it.  Moreover, allegations contained in a complaint, like those in all other pleadings, are considered admissions by the party asserting them.  Those that turn out to be false may become fodder for the plaintiff's cross-examination.  Before filing suit then, thoughtful consideration should be given not only to whether there is enough detail in the complaint to satisfy Iqbal, but also to ensure there is a solid basis for believing the detail is in fact true. 
In federal court cases, the impact of Iqbal upon defense counsel, the attorneys who defend parties sued in court, is straightforward: they should scrutinize complaints.  Motions to dismiss should be filed whenever a defendant's conduct appears merely to be "possibly" unlawful.  In short, defense counsel should hold plaintiffs to the burden Iqbal creates.

A Reminder From The Bench: Proving A Hostile Work Environment Claim Is Not Easy

by Sheryl L. Axelrod

On August 14, 2009, the United States Court of Appeals for the Third Circuit, this region's federal appellate court, kept the bar for proving hostile work environment claims very, very high.  "Occasional insults ... are not enough," the court reiterated in Brooks v. CBS Radio, Inc.  To prove a hostile work environment claim, the discrimination must be so "severe" or "pervasive" that it permeates the workplace and changes the very nature of the job. 
Even being told by a supervisor to read a book containing blatantly racist passages, the court decided, is not enough.  In Brooks, the sole African-American account executive at CBS Radio, Inc. quit after being told by his supervisor to read "Dress For Success".  More specifically, Mr. Brooks left as a result of being offended by a number of the book's shocking passages including the following:
"The two groups who have the most problems with their appearances are black men and Hispanic men. It is unfortunate but true that our society has conditioned us to look upon members of both groups as belonging to the lower classes, and no matter how high a minority individual rises in status or achievement, he is going to have some difficulty being identified by his success rather than his background. But clothing can help."
Despite the book's content, the court ruled that its distribution did not create a hostile work environment for Mr. Brooks.  There was no evidence Mr. Brook's supervisor ever read the book.  Not only that, the court decided that since there was no hostile work environment, Mr. Brooks had no need to quit so he could not recover monies from CBS Radio for his departure.
Brooks should make people who believe they work in hostile environments think twice before quitting.  They are well advised to seek an attorney's counsel.  Together with their attorney, they should step back and reflect about the issue the way a court will: is the discrimination limited to occasional insults, they should ask, or are the insults so severe or pervasive that they infect the very nature of the job?  If it's the latter, before leaving, they should complain about it.  They should write out a list of their grievances, date and make a copy of it and hand it to the Human Resources Department (or if there is none, to their supervisors), specifying what precisely the problems are.  They should then give their employer the opportunity to rectify the situation. Mr. Brooks did not give his supervisor this chance, and the Third Circuit held that against him. 
Brooks notwithstanding, employers should always be vigilant in identifying and eradicating discrimination in the workplace.  Diversity should not just be tolerated; it should be welcomed and appreciated.  If there is discrimination but it is not severe or pervasive, an employer may win a hostile work environment claim, but the employee may bring other discrimination claims, and the employee will in all likelihood find those easier to prove.  Beyond claim prevention, keeping discrimination out of the workplace helps ensure that every employee can be successful.  That, in turn, helps a company perform at its peak.

The Supreme Court Decides That Age May Factor Into An Employer's Decision To Take Action Against An Employee

by Sheryl L. Axelrod

The Supreme Court -- sharply divided 5 justices to 4 -- recently published a controversial ruling in the field of employment discrimination law.  Gross v. FBL Financial Services, Inc. dealt with the Age Discrimination in Employment Act of 1967 (ADEA) which makes it unlawful for an employer to take action against an employee "because of such individual's age".  On June 18, 2009 in Gross, the majority of justices decided that an employee cannot win a claim under the ADEA with proof that age was a factor motivating the employer to take action; the employee must prove that age was the determinative factor.

In other types of employment discrimination cases – cases, for instance, for race or gender discrimination – there is no need to prove that discrimination was the motivating factor.  Employees need only show that discrimination was a factor.  The Supreme Court's decision means that an employer may now take action against an employee based on age as long as other considerations also factor into the decision.

The Gross ruling should not change the way employers conduct their affairs.  Congress may step in and reverse the decision.  A law could be passed permitting age discrimination to be proven with evidence that age was considered.  An employer is also always better off fighting an age discrimination claim where there has in fact not been any age discrimination.

Employees asserting age discrimination claims, on the other hand, will need to alter their behavior.  They are now going to have to charge that age was the reason their employers took action against them; it will not be sufficient for them to claim that age factored into the decision.  The Gross ruling will also make it tougher for employees to prove age discrimination claims.  Employers may now defend the claims by asserting that age was merely a factor taken into consideration; before Gross, on the other hand, any taking of age into consideration was enough to prove age discrimination.